How would the UK introduce a written constitution?

Can someone help with this short course work question?

The introduction of a written constitution intothe United Kingdom would be relatively straightforward legislative task; the Executivewould initiate, the Legislature would entrench, and the courts would enforceand protect. Discuss.

2. Would the written constitution actually function as a sovereign text? Parliamentary Sovereignty dictates that Parliament is sovereign, so it follows that, if the constitution was created by an ordinary act of Parliament, Parliament could always repeal it, so it would not be sovereign. Look at the various theories for transfer of sovereignty.

...but we only have the rule of parliamentary sovereignty because we have no written constitution which negates parliament...so having a written constitution would stop parliamentary sovereignty in its current form - how is a written and codified constitution going to be trumped by a residual rule such as parliamentary sovereignty?

I'm not sure where the assertions 'we only have the rule of parliamentary sovereignty because we have no written constitution which negates parliament' and 'a residual rule' come from. I fail to see how the enactment, by Parliament, of a 'constitution' could override Parliamentary Sovereignty, because by the very same procedure Parliament could repeal the constitution. As a control of the legislature, it would hardly be worth the paper it is written on.

our conventions actually do come largely from the absence of legal constraints on parliament. for example, the royal prerogative - it only exists because parliament has failed to put restraints on the executive regarding certain things, such as the declaration of war, or the appointment of a government, etc. when parliament is silent, also, the executive is sovereign (via the monarch). parliamentary sovereignty would end with a constitution in the same way it has ended regarding the EU - to turn a formerly sovereign parliament into a regulated parliament, that, obviously, requires a constitution. you couldn't just say "we've created a monster" because parliament *has* been sovereign, as if this means it will always be sovereign.

Do you have any evidence for Parliament's ability to limit it's own sovereignty? You've cited accession to the EU as the only non-hypothetical example, so assuming this is where your evidence is, could you explain exactly how EU accession has limited Parliamentary Sovereignty

you also need to realise that the following of procedures from a constitution takes a very important condition: respect for the law.

But Parliament defines what the law is, so it's odd to say that it doesn't respect the law when it changes it. Would you say that Parliament 'disrespected' the Sexual Offences Act 1956 when it enacted the Sexual Offences Act 2003.

parliament could, in theory, do *whatever* it wanted. it could sack judges, sack monarchs, make laws that walked all over respect for liberty, democracy, etc. the thing which keeps parliament respecting things like "EU-referendum locks" (2011) and the convention of how the opposing parties to a successful referendum result *must* sign that resolution into law even if they don't want to (because democracy, as a convention, is respected by those that make the law) is respect for the system.

So you are saying that, in addition to the new codified constitution, we would need an additional uncodified convention/political attitude (call it what you will) to give the aura of sovereignty to the constitution. What happens if someone questioned this convention (example below)

law isn't something that can do everything on its own - you need people who believe in the law (or in this case, the hypothetical new constitution) or else the law is meaningless - what is a law when nobody follows or respects it as authoritative?
I'm sure Joseph Raz would be very interested in that question, but I don't think it is to be resolved here. Suffice it to say, absolute respect for law would be a morally troubling prospect. Regardless, people would still respect the law, whether we had a sovereign Parliament or Constitution. All we are discussing is, when it came to answering the question of sovereignty, which would be found to prevail.

Put it this way. Parliament enacts the Constitutional Reform Act 2016. Section 1 says that "This Act will be the sovereign text/constitution for the United Kingdom, and shall not be subject to repeal or amendment, save in accordance with the provisions laid out in section X of this Act." Section X sets out some new procedure, e.g. referendum, qualified majority voting or whatever else.

One year later, Parliament enacts the Constitutional Reform (Repeal) Act 2017 by a procedure which does not comply with Section X of the 2016 Act. Section 1 says "The Constitutional Reform Act 2016 is hereby repealed in full".

Which act prevails? As far as I understand your opinion, you would say that the 2016 Act is now sovereign, so Parliament was unable to repeal it by the non-compatible legislative procedure which it adopted in 2017. But do you have any evidence for Parliament being able to bind its future self in that way? Sure, there could be a convention, but as I explained above, conventions are just unresolved questions, so now that we are looking for an answer, we must look past the convention to find one.

look, all I am saying is that if parliament made a constitution, it would be very clear that parliament would no longer be sovereign.

the EU statute is based on its own parliamentary sovereignty, I know, but it is still a limit to itself because, instead of the implied repeal rule, they have to jump through another procedural hoop which is exceptional in parliament (express repeal).

what judge of the supreme court, too, is really going to look at this new hypothetical constitution and say "this doesn't challenge parliamentary sovereignty" even when the binding document actually specifically expresses that it does?

how could we call it a codified constitution if it wasn't?

and surely this relates, once again, to the rule of social recognition and construction? if the courts don't recognise a constitution that parliament creates, then they'd probably just set up their own new courts and discard the funding to the old courts - that's why the courts aren't sovereign - they don't have the power to tax and therefore sustain themselves independently.

if the issue is the nature of parliament being all powerful, then look at how parliament was set up in the first place - by mere politicians. they can destroy what they themselves created, and then re-create a newly bound-by-constitution parliament in its place.

This is a methodological error. You're being prescriptive here; you're claiming what a constitution ought to do limits what it can do. Just because you have a belief that constitutions ought to do this doesn't mean that they necessarily have to. Purely descriptively, parliamentary sovereignty and codification are not at odds with one another.

Actually, yes. It would be nice to have what are currently constitutional conventions listed out in law. It would be nice to have a document specifying which rights are recognized by English law, etc.

Now you've conflated entrenchment for adherence to rule of law. Just because a constitution isn't entrenched doesn't mean that it doesn't protect one from abuses of power. Under the rule of law, a government body or agent is limited to those actions whichare legally permissible. Entrenchment isn't necessary for adherence to rule of law.

You're being a prescripitivist, which is wholly irrelevant here. The question is one of logical possibility, not oughts. Work in the plane of descriptivism.

Your use of the term 'constitution' isn't then recognizable to those in the academic setting who study constitutionalism. A constitution is, according to constitutional theory, a document which regulates the power/setup of government. A constitution need not contain any forms of rights, it could merely establish the branches of government and the power between them. It's perfectly acceptable to have an illiberal and undemocratic constitution - a dictatorship can have a constitution; and in fact, many have had such documents.

Your claims about constitutions are meaningless in this context because you're talking about what you think constitutions ought to do; you're being a prescriptivist. The question, however, is if parliamentary sovereignty and the existence of a codified constitution are legally possible. The answer to this is, undoubtedly, yes. You may think that constitutions ought not to permit these simultaneous existences, but that's your opinion about constitutions. It is not a statement of descriptive constitutional theory.

You've massively conflated the moral aims of liberalism and the origin of constitutionalism as being within liberalism as meaning that constitutions necessarily are, achieve or aim for the realization of those same moral aims. You need to separate your moral ideology from your descriptive legal ideology. Take a lesson from legal positivism.

The claim here is that the mere existence of a written constitution would inherently stop parliamentary sovereignty (by which you actually mean supremacy; sovereignty and supremacy are technically different concepts even though they have a nasty habit of being interchanged).

A written and codified constitution in no way cannot be trumped by a rule of parliamentary supremacy. An entrenched, either written or unwritten, codified or not, constitution cannot co-exist with parliamentary supremacy.

Your claim was a blanket claim about the nature of constitutions and supremacy. Nowhere was it in any capacity qualified.

It could specify mechanisms of simple majority. A constitution can contain amendment clauses without overriding parliamentary supremacy.

Codification of the constitution. That's what we're talking about here. A written constitution, when contained in a single document, is called a codified constitution.

Legally, both yes and no. In conventional day-to-day law, Parliament would not have supremacy over those clauses. However, as we know from constitution making processes, they could rupture the constitutional order and create a new constitution. But that's more to do with Parliamentary sovereignty than supremacy.

And yet there are still academics making these arguments and they haven't fallen on deaf ears.

It would specify the body of constitutional law. Do you know all of the constitutional conventions? I certainly don't. And, new ones can just sort of pop up. Codifying the constitution prohibits conventions from simply popping up, by requiring them to be in a written document.

I haven't suggested anything. I've merely given you current academic arguments.

This argument is question begging. If there is no entrenchment, then legally speaking, there are no 'appropriate bounds of power.' This is a prescriptive moral claim about what constitutions ought to do.

Nowhere have I stated that I prefer the model of Parliamentary supremacy